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Texas: Hospital Employee Not Protected By Whistleblower Law

A hospital employee who reported alleged wrongful behavior to hospital staff was not protected under the Texas Whistleblower Act because she had not reported violations of the “law” to an appropriate law enforcement authority, a Texas appellate court ruled.

Kelly Ellis was hired by Lubbock County Hospital District d/b/a University Medical Center in 2012. While in new-employee orientation, Ellis was assigned to observe a surgical procedure. During the procedure, Ellis saw a surgeon toss tissue removed from a patient to a surgical tech. The tissue was not sterile and touched the anesthetized patient, contaminating her. Ellis feared this would lead to a surgical site infection in the patient. Ellis believed the conduct she witnessed constituted criminal assault. She also believed it amounted to “negligence,” “malpractice,” and an ethical breach. Ellis reported the behavior to several staff members within the hospital chain of command as well as the hospital compliance hotline, after which she was banned from observing anymore surgeries and ultimately fired a few weeks later.

Ellis sued the hospital under the Texas Whistleblower Act. The hospital claimed that the court lacked subject matter jurisdiction because the hospital is a government entity immune to suit. The trial court agreed and dismissed the entire case. Ellis appealed the decision.

The Texas Whistleblower Act provides, “A state or local governmental entity may not suspend or terminate the employment of, or take other adverse personnel action against, a public employee who in good faith reports a violation of law by the employing governmental entity or another public employee to an appropriate law enforcement authority.” In addition, government immunity is expressly waived when a government employee alleges a violation of the Whistleblower Act, according to the appeals court.

Ellis argued the conduct in the operating room she witnessed and reported violated rules adopted by the hospital under a statute and were therefore “law” for purposes of the Whistleblower Act. However, the appeals court found that the excerpts from the hospital’s employee handbook which Ellis cited were not law under the act.

The appeals court further explained that Ellis must have objectively in good faith believed she was reporting violations of the law to an entity authorized to enforce, investigate, or prosecute similar violations against third parties outside of the hospital and not merely an entity capable of internally disciplining employees for an alleged violation. Ellis knew that none of the hospital staff to whom she reported the alleged wrongful behavior could have investigated or prosecuted her complaints outside of the hospital, according to the court.

The appeals court ruled that Ellis did not report the alleged violation to an appropriate law enforcement authority and she could not in good faith have believed that she had. She did not qualify for protection under the Texas Whistleblower Act, so the hospital’s governmental immunity was not waived. The appeals court affirmed the order of the trial court.